After years of lobbying state legislators, peppering them with horror stories about incapacitated seniors trapped in court-ordered guardianships, advocates thought they had a solution in hand.
Lawmakers passed a bill in the 2016 session that would for the first time give Florida the power to regulate professional guardians appointed by judges to control the finances and the medical care of some of the state’s most vulnerable people.
No longer would families watch in turmoil from the sidelines as unethical guardians with attorneys as hired guns drained their loved one’s life savings through frivolous legal actions. They wouldn’t have to fight guardians over getting simple adequate medical care for mom or dad or keeping them in their homes.
Now the grass-roots advocacy group behind the law says their efforts ultimately were undone during the process of setting up the state’s new Office of Public and Professional Guardianship. The rules that would carry out the new law were overhauled in the past six months after those who stand to make the most money off guardianship — professional guardians and their lawyers — complained and suggested numerous changes.
The director of the new office —who helped draft initial rule language — says the new guidelines walk the fine line between holding guardians accountable for the first time in Florida while not being overly burdensome. The office is fully operational — though the part of the rules that establish the standard of conduct and disciplinary action for guardians is pending final legislative approval.
Americans Against Abusive Probate Guardianship is upset about changes to the rights of families to hold a bad guardian answerable, saying the law as envisioned by the Legislature required families be involved. But the guardianship office says it had to amend the rules to make sure that abusive family members could be kept at bay by the courts.
“It is like the Legislature is almost irrelevant because every law they pass, the people who run the guardianship system find a way to subvert it, twist it, so it won’t work,” said Sam Sugar, the co-founder of the group that worked for years to get lawmakers to pay attention to guardianship.
“The real story here is how a small group of judges, guardians and their lawyers have hijacked a system designed to protect folks and exploited it to enrich themselves in so many different ways.”
Fees prior to approval?
Among those who complained about the original proposed rules was Ellen Morris, chair of the Elder Law Section of the Florida Bar. Morris also represents Elizabeth “Betsy” Savitt, a guardian whose actions sparked numerous complaints from families.
Savitt took tens of thousands of dollars in fees before any approval by a judge — money that came directly from the savings of her incapacitated wards.
Savitt’s husband, Circuit Judge Martin Colin who presided over guardianship cases, retired last year after The Palm Beach Post in its series, Guardianships: A Broken Trust, reported that he had a conflict of interest with his wife as a guardian.
Though he never presided over Savitt’s cases, her attorneys appeared in front of him in other cases. Colin’s judicial colleagues presided over Savitt’s cases. No judge ever found wrongdoing by Savitt.
In October, Chief Judge Jeffrey Colbath handed down sweeping guardianship reforms for the county, addressing many of the complaints made about Savitt. Among them was a prohibition of taking fees before a judge OK’d them. The chief auditor of guardianship cases in the county said Savitt was the only guardian doing that.
Morris argued in favor of the practice when, in August, she sent a six-page letter detailing her concerns about the rules to the director of the new state guardianship office. Morris insisted state law allowed it and that the rules shouldn’t prohibit it.
The new guardianship office rejected Morris’ advice.
“We ultimately determined that requiring court approval of guardianship fees is necessary to prevent fraud and excessive guardianship fees,” said Jason Nelson, director of the new guardianship office.
Morris’ criticism wasn’t limited to judicial approval of fees, though. She said that the initial draft of the rules instituted “aspirational standards” for a trade group without considering statutory limitations and “the erratic nature of human interaction.”
She wrote that the proposed language of the rules was too vague in mandating guardians to allow contact with family members and friends unless it causes “substantial harm” to the incapacitated ward. She said the language could lead to “significant litigation.”
Morris’ criticisms were echoed by a Tampa Bay guardian who filed a formal challenge to the rules in court, the South Florida Guardianship Association and the Florida Bar’s Real Property & Trust Law Section.
Sugar says there is a tight affiliation of lawyers, judges and guardians who he believes work together to maximize fees.
The advocate is disappointed that a task force appointed by Supreme Court Chief Justice Jorge Labarga, who is from Wellington, to “re-evaluate” the guardianship system does not include any members of the public who have challenged the status quo.
“There’s so much going on behind the scenes and in secret and behind closed doors with regards to anything that affects the money flow in guardianship,” Sugar said. “Clearly, there has been massive pushback to the laws that our group had advocated for and successfully got through the legislature.”
Morris did not respond to questions from The Post sent to her by phone or e-mail.
Nelson, however, said he disagreed with Sugar and that the new guardianship office will be a vast improvement over the old system where the state did not have any regulatory authority to weed out bad professional guardians.
“The rules provide a level of accountability for professional guardians, while at the same time avoiding the imposition of overly burdensome regulations on an industry that serves the state’s growing elder and vulnerable adult population,” Nelson said.
He said rules regarding the interaction between professional guardians and family members of incapacitated individuals were changed because some of the provisions would have violated the wards’ privacy rights protected under Florida’s Constitution. It also would have required guardians to share information even with abusive family members.
Under the current revisions, a judge would decide which family members are kept in the loop, Nelson said. The amended rules allow the state to discipline professional guardians who fail to follow the court’s directives.
Sugar has little faith that judges will side with a family over a corrupt guardian. He said his group has found numerous incidents where family members were prohibited from seeing their loved ones after complaining about inadequate medical care. Guardians have succeeded even in annulling marriages — an issue currently at the Florida Supreme Court.
The new guardianship office also settled a formal rule challenge filed in court by Tampa Bay guardian Darby Jones. Her Tallahassee attorney, Sarah Butters, said Jones in many instances wanted more stringent guidelines because she felt her profession had been maligned by a few unethical guardians.
Butters said the new rules are an improvement over the old system where the state had little oversight over guardians except to check their credit history and to register them.
“They didn’t give us everything we wanted but they gave us enough that we’re willing to drop it (the court challenge),” Butters said. “The big highlights are the background check sections for guardians would be beefed up significantly.”